The International Comparative Legal Guide to:

A practical cross-border insight into telecoms, media and internet laws and regulations

Published by Global Legal Group, with contributions from:

Arnold & Porter Kaye Scholer LLPAshurst Hong KongAzmi & AssociatesBagus Enrico & PartnersBorenius Attorneys LtdCairn LegalConcern Dialog law firmCuatrecasasde la cruz beranek Attorneys at Law Ltd.JeantetJingtian & GongchengJosh and Mak InternationalKromann ReumertMelnitsky & Zakharov, Attorneys-at-LawMinterEllison

Mobile Ecosystem ForumMonereo Meyer Marinel-lo AbogadosMori Hamada & MatsumotoNikolinakos – Lardas & Partners LLPOrionW LLCPinsent Masons Germany LLPPortolano CavalloPreiskel & Co LLPRato, Ling, Lei & Cortés – AdvogadosSEUM LawShay & PartnersTilleke & GibbinsUdo Udoma & Belo-OsagieWildgen S.A.Wiley Rein LLP

11th Edition

Telecoms, Media & Internet Laws & Regulations 2018

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Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720

DisclaimerThis publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

The International Comparative Legal Guide to: Telecoms, Media & Internet Laws & Regulations 2018

General Chapters:

Country Question and Answer Chapters:

1 Europe’s Digital Single Market: Mid-Term Review – Rob Bratby, Arnold & Porter Kaye Scholer LLP 1

2 A Regulatory Re-Think? – Tim Cowen & Daniel Preiskel, Preiskel & Co LLP 7

3 Consumer Trust, Regulation and the Mobile Opportunity – Rimma Perelmuter, Mobile Ecosystem Forum 10

4 Armenia Concern Dialog law firm: Aram Orbelyan & Vahagn Grigoryan 13

5 Australia MinterEllison: Anthony Borgese 21

6 Belgium Cairn Legal: Guillaume Rue & Frédéric Paque 31

7 China Jingtian & Gongcheng: Chen Jinjin & Hu Ke 40

8 Denmark Kromann Reumert: Torben Waage & Alexander Ph. D. Rasmussen 50

9 Finland Borenius Attorneys Ltd: Samuli Simojoki & Henriikka Piekkala 57

10 France Jeantet: Frédéric Sardain & Sophie Boinnot 64

11 Germany Pinsent Masons Germany LLP: Dr. Florian von Baum & Dr. Igor Barabash 74

12 Greece Nikolinakos – Lardas & Partners LLP: Dr. Nikos Th. Nikolinakos & 84 Dina Th. Kouvelou

13 Hong Kong Ashurst Hong Kong: Joshua Cole 93

14 Indonesia Bagus Enrico & Partners: Enrico Iskandar & Bimo Harimahesa 102

15 Italy Portolano Cavallo: Ernesto Apa & Adriano D’Ottavio 110

16 Japan Mori Hamada & Matsumoto: Hiromi Hayashi & Akira Marumo 118

17 Korea SEUM Law: Steve Kim & Hoseok Jung 126

18 Luxembourg Wildgen S.A.: Emmanuelle Ragot 134

19 Macau Rato, Ling, Lei & Cortés – Advogados: Pedro Cortés & José Filipe Salreta 142

20 Malaysia Azmi & Associates: Khairul Fazli Abdul Kadir & Azarith Sofia Binti Aziz 154

21 Nigeria Udo Udoma & Belo-Osagie: Olajumoke Lambo & Godson Ogheneochuko 165

22 Pakistan Josh and Mak International: Aemen Zulfikar Maluka & Pir Abdul Wahid 173

23 Portugal Cuatrecasas: Leonor Chastre & Maria Luísa Cyrne 181

24 Russia Melnitsky & Zakharov, Attorneys-at-Law: Semion Melnitsky & 189 Anastasia Sivitskaya

25 Singapore OrionW LLC: Winnie Chang 197

26 Spain Monereo Meyer Marinel-lo Abogados: Sönke Lund & 205 Consuelo Álvarez Pastor

27 Switzerland de la cruz beranek Attorneys at Law Ltd.: Carmen De la Cruz 214

28 Taiwan Shay & Partners: Arthur Shay & David Yeh 221

29 Thailand Tilleke & Gibbins: David Duncan 228

30 United Kingdom Arnold & Porter Kaye Scholer LLP: Rob Bratby 236

31 USA Wiley Rein LLP: Jennifer D. Hindin & Madeleine M. Lottenbach 244

32 Vietnam Tilleke & Gibbins: Tu Ngoc Trinh & Waewpen Piemwichai 253

Contributing EditorRob Bratby, Arnold & Porter Kaye Scholer LLP

Sales DirectorFlorjan Osmani

Account DirectorOliver Smith

Sales Support ManagerToni Hayward

Sub EditorJane Simmons

Senior EditorsSuzie Levy, Rachel Williams

Chief Operating OfficerDror Levy

Group Consulting EditorAlan Falach

PublisherRory Smith

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EDITORIAL

Welcome to the eleventh edition of The International Comparative Legal Guide to: Telecoms, Media & Internet Laws & Regulations.

This guide provides the international practitioner and in-house counsel with a comprehensive worldwide legal analysis of telecoms, media and internet laws and regulations.

It is divided into two main sections:

Three general chapters. These chapters provide readers with an overview of key issues affecting telecoms, media and internet laws and regulations, particularly from the perspective of a multi-jurisdictional transaction.

Country question and answer chapters. These provide a broad overview of common issues in telecoms, media and internet laws and regulations in 29 jurisdictions.

All chapters are written by leading telecoms, media and internet lawyers and industry specialists and we are extremely grateful for their excellent contributions.

Special thanks are reserved for the contributing editor Rob Bratby of Arnold & Porter Kaye Scholer LLP for his invaluable assistance.

Global Legal Group hopes that you find this guide practical and interesting.

The International Comparative Legal Guide series is also available online at www.iclg.com.

Alan Falach LL.M. Group Consulting Editor Global Legal Group Alan.Falach@glgroup.co.uk

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Chapter 29

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Thailand

1.3 List the government ministries, regulators, other agencies and major industry self-regulatory bodies which have a role in the regulation of the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors in your jurisdiction.

Telecommunications is primarily subject to regulation by the NBTC and the Ministry of Digital Economy and Society (MDES), including the National Information Technology Committee and the National Electronics and Computer Technology Centre. Audio-visual media distribution is primarily regulated by the NBTC, and the Censorship Board, which is a unit of the Ministry of Culture.

1.4 In relation to the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors: (i) have they been liberalised?; and (ii) are they open to foreign investment?

In the telecommunications and internet space, Type 2 and Type 3 licences are unavailable to applicants considered “foreign” as determined according to the provisions of the Foreign Business Act. In addition, these licensees are obligated to observe the NBTC Notification on Prevention of Foreign Dominance. In contrast, Type 1 licences are available regardless of the level of foreign ownership in the applicant; the NBTC Notification on Prevention of Foreign Dominance is not applicable to them. Thus, foreign ownership and control is effectively limited to less than 50% for facilities-based telecommunications operators. Telecommunications operators that would operate on a non-facilities basis, however, can be wholly foreign-owned, provided they do not require a Type 2 licence for the intended services.As for media, foreign ownership and control of a broadcasting licensee are each limited to 25%.

2 Telecoms

General

2.1 Is your jurisdiction a member of the World Trade Organisation? Has your jurisdiction made commitments under the GATS regarding telecommunications and has your jurisdiction adopted and implemented the telecoms reference paper?

Thailand has been a member of the World Trade Organisation since

1 Overview

1.1 Please describe the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors in your jurisdiction, in particular by reference to each sector’s: (i) annual revenue; and (ii) 3–5 most significant market participants.

Thailand’s two major state telecommunications operators – CAT and TOT – formerly held monopolies on telecommunications service in Thailand. Traditionally, they provided some services themselves, and they each granted concessions to private operators. The law has made a distinct shift away from the concessions regime, and replaced it with a licensing regime administered by the National Broadcasting and Telecommunications Commission (NBTC). However, some concessions still remain.There are currently three major private mobile carriers – AIS, DTAC and True, all of which vigorously compete. In addition, each of CAT and TOT host a number of MVNOs. Landline services are provided primarily by TOT, True, and TT&T, but VoIP services are a source of growing competition.Terrestrial broadcast television has largely transitioned to digital, though some analogue broadcasters remain. As for cable and satellite television, there are several operators in the Kingdom, but the primary operator is TrueVisions. CTH was another significant operator, but it has ceased operations.There are numerous internet service providers, but network infrastructure is owned by a small number of major telecommunications operators (both state and private).

1.2 List the most important legislation which applies to the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors in your jurisdiction.

The primary legislation relevant to telecommunications and audio-visual media distribution are:■ the Radio Communications Act B.E. 2498 (as amended);■ the Telecommunications Business Act B.E. 2544 (as

amended);■ the Broadcasting Business Act B.E. 2551;■ the Frequency Allocation Act B.E. 2553 (as amended);■ the Computer Crimes Act B.E. 2550 (as amended); and■ the Film and Video Act B.E. 2551 (as amended).There is a considerable body of administrative regulations and notifications promulgated under these laws.

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2.7 In relation to individual authorisations, please identify their subject matter, duration and ability to be transferred or traded. Are there restrictions on the change of control of the licensee?

The subject matter of each form of individual authorisation is described in the response to question 2.5.Type 1 licences are valid for five years, Type 2 licences are valid for 15 to 25 years for operators with their own networks or five years for those without their own networks, and Type 3 licences are granted for periods of 15 to 25 years. Licences are renewable, subject to compliance with regulatory requirements.Telecommunications Licences are not transferable.

Public and Private Works

2.8 Are there specific legal or administrative provisions dealing with access and/or securing or enforcing rights to public and private land in order to install telecommunications infrastructure?

The NBTC administers regulations concerning rights of way for erecting poles, laying conduit or cables and installing equipment for providing telecommunications services. Depending on the type of easement required, a notice may be sufficient – otherwise, it may be necessary to negotiate an agreement. The regulation takes the general approach that such agreements should be reflective of equality, fairness and impartiality.

Access and Interconnection

2.9 How is wholesale interconnection and access mandated? How are wholesale interconnection or access disputes resolved?

There are several regulations on network interconnection and access. Essentially, licensees operating their own telecommunications networks must:1. permit other licensees to interconnect with their networks;2. permit other licensees to access their telecommunications

networks as a means to access their networks;3. provide transit services to other licensees through their

telecommunications networks;4. provide roaming services to other telecommunications service

providers;5. offer and provide unbundled network services and essential

facilities of their own networks to permit other licensees’ access or interconnection with their networks; and

6. permit other licensees to access and employ technical specifications on their telecommunications network access, interfaces and protocols or necessary technology for interoperability, in order to facilitate access or interconnection with their networks.

Licensees with their own telecommunications networks, however, may refuse to permit other licensees access to their networks if their existing telecommunications networks are insufficient to accommodate other licensees. In addition, access may also be refused if there are technical difficulties which may, as a result, cause interference in, or otherwise obstruct, the telecommunications business.

1 January 1995 and has made commitments under GATS regarding both value-added services and basic telecommunications.

2.2 How is the provision of telecoms (or electronic communications) networks and services regulated?

The provision of telecommunications/electronic communications networks and services is subject to the aforementioned laws, which provide for regulation primarily by the NBTC. The MDES also has a significant role in regulation.

2.3 Who are the regulatory and competition law authorities in your jurisdiction? How are their roles differentiated? Are they independent from the government?

The Trade Competition Commission and the Committee on Prices of Goods and Services are competition and fair trading regulators of general jurisdiction. These bodies are nominally independent, but their members are appointed by the government. It should also be noted that the NBTC has also issued competition regulations specific to telecommunications.

2.4 Are decisions of the national regulatory authority able to be appealed? If so, to which court or body, and on what basis?

Decisions of the NBTC can be appealed within the organisation itself, subject to the Administrative Procedure Act. Accordingly, further appeal to the Administrative Court would also be possible, depending on the circumstances.

Licences and Authorisations

2.5 What types of general and individual authorisations are used in your jurisdiction?

Primary authorisations take the form of Telecommunications Licences, which are categorised as Type 1, Type 2 and Type 3. Each Telecommunications Licence specifies the type(s) of telecommunications business in which its holder can engage, and it also typically has a range of different conditions and endorsements.1. Type 1 Licence: Type 1 licences are for telecommunications

operators that provide service without their own networks.2. Type 2 Licence: Type 2 licences are for telecommunications

operators that provide service either with or without their own networks, for use by a limited group of people, or that have no significant impact on competition, public interest and consumers.

3. Type 3 Licence: Type 3 licences are for telecommunications operators that provide service with their own networks, for use by the general public or which may impact competition, public interest or consumers.

2.6 Please summarise the main requirements of your jurisdiction’s general authorisation.

Subject to certain narrow exceptions, individual authorisations – in the form of the licences described in the response to question 2.5 – are required to lawfully engage in any telecommunications business.

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in the areas of personal data, privacy and freedom of communication via telecommunications networks. Licensees are also required to establish separate call centres to receive complaints, to establish procedures for receiving and considering user complaints, and to comply with regulatory requirements in relation to handling complaints, including an escalation process in which resolution is pursued within particular deadlines.Licensees must also meet Universal Service obligations, (i.e. by making specified contributions to the Universal Service Fund).

Numbering

2.16 How are telephone numbers and network identifying codes allocated and by whom?

Telephone numbers and special codes are allocated by the NBTC, in accordance with regulations and the numbering plan.

2.17 Are there any special rules which govern the use of telephone numbers?

Telephone numbers can only be allocated to telecommunications licensees for use in their provision of telecommunications service, and there are extensive regulations governing such allocation. Generally, telephone numbers can only be used in providing service consistent with the numbering plan.

2.18 Are there any obligations requiring number portability?

Service users have the right to mobile number portability, and service providers are generally prohibited from acting to obstruct or impede the porting of mobile numbers to other service providers, though there are exceptions to accommodate technical and other issues. The relevant notifications set out considerable detail as to the mechanics.

3 Radio Spectrum

3.1 What authority regulates spectrum use?

The NBTC is the primary regulator of spectrum use.

3.2 How is the use of radio spectrum authorised in your jurisdiction? What procedures are used to allocate spectrum between candidates – i.e. spectrum auctions, comparative ‘beauty parades’, etc.?

Radio frequency spectrum is allocated pursuant to the Frequency Allocation Act. For commercial spectrum usage, it provides for the NBTC to consider and grant permits for use of spectrum by auction, according to procedures and conditions the NBTC may set.

3.3 Can the use of spectrum be made licence-exempt? If so, under what conditions?

Certain categories of spectrum use are licence-exempt; the conditions depend on the applicable use.

In the case of a dispute, parties may apply to the Dispute Resolution Committee of the NBTC. Detailed procedures are set out in regulations for this purpose.

2.10 Which operators are required to publish their standard interconnection contracts and/or prices?

Licensees with their own telecommunications networks are required to provide Reference Access Offers and Reference Interconnection Offers, with respect to access or interconnection by other licensees.Licensees must also prepare information on the calculation of charges for network access, interconnection and unbundled components. This information is to be submitted at the time of a licence application and periodically, and it is subject to consideration by the NBTC.

2.11 Looking at fixed, mobile and other services, are charges for interconnection (e.g. switched services) and/or network access (e.g. wholesale leased lines) subject to price or cost regulation and, if so, how?

Standards and pricing methodologies are set in regulations administered by the NBTC. In principle, the approach is that reasonable access or interconnection charges are to be calculated only for each network element used in providing the given service. Other expenses not directly relating thereto are not to be included in the calculation. The NBTC has the authority to order licensees to restructure their pricing, and to submit it for NBTC approval. The NBTC also has the authority to regulate each step of the procedure for access/interconnection and/or to determine network access or interconnection charges that it deems appropriate.

2.12 Are any operators subject to: (a) accounting separation; (b) functional separation; and/or (c) legal separation?

See response to question 2.11.

2.13 Describe the regulation applicable to high-speed broadband networks. On what terms are passive infrastructure (ducts and poles), copper networks, cable TV and/or fibre networks required to be made available? Are there any incentives or ‘regulatory holidays’?

As a general matter, operators of broadband networks are subject to regulation in the same way as operators of other telecommunications services, and such operators likewise generally have the same rights.

Price and Consumer Regulation

2.14 Are retail price controls imposed on any operator in relation to fixed, mobile, or other services?

Regulations administered by the NBTC impose maximum pricing for certain services.

2.15 Is the provision of electronic communications services to consumers subject to any special rules (such as universal service) and if so, in what principal respects?

Regulations impose requirements in relation to service contracts, tariffs and service charges, as well as protection of consumer rights

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submit materials for inspection or information, all within the scope of the Act, or to request state agencies or private entities to facilitate the Committee’s performance of its duties. It would also provide for officials to be empowered to access communications information, whether in the form of post, telegram, telephone, fax, computer, or any mechanism or device for electronic communication or telecommunications, for the purpose of cybersecurity. However, the law contemplates that the Council of Ministers would promulgate rules for officials to follow in accessing such information, presumably for the purpose of addressing privacy concerns. The law also contains provisions by which to protect such information and to prevent its disclosure, except in cases of prosecution under the Act, abuse of power, or as otherwise authorised by the court.

4.2 Describe the legal framework (including listing relevant legislation) which governs the ability of the state (police, security services, etc.) to obtain access to private communications.

In principle, Thai law protects communications from access, interception and disclosure, but it provides certain exceptions for government authorities, particularly in cases that have national security implications, or cases that concern public order or good morals of Thailand. The new Constitution contains provisions on privacy, which translate:A person shall enjoy the rights of privacy, dignity, reputation, and family.An act violating or affecting the rights of a person under Paragraph One, or the use of personal information for benefit by any means shall not be permitted, except by virtue of the provisions of the law specifically enacted as deemed necessary for the public interest.At this stage, it remains uncertain whether these provisions will allow for a private cause of action, or if they will be interpreted to be aspirational.In any case, in the normal course, exceptions allowing access by governmental authorities apply through the regulatory framework applicable to information technology service providers (through the Computer Crimes Act) and the regulatory framework applicable to telecommunications operators (through the Telecommunications Business Act). In addition, special powers are available to certain government officials handling certain types of cases under the Special Investigation Act, and in emergency situations, under the Emergency Decree on Public Administration in a State of Emergency. Each is explained below.Computer Crimes ActThe Computer Crimes Act empowers competent officers of the MDES to send enquiry letters, summon concerned persons for interrogation, and request statements, documents, computer data, computer traffic data, and evidence from service providers (as defined in the Act). These officers can also order service providers to hand over certain data pertaining to users, which service providers are obligated to keep, under the law.In addition, the officers can take further actions, but only with a court order. These include copying computer data or computer traffic data, ordering a service provider to hand over computer data, computer traffic data, or devices, examining and accessing computer systems, computer data, computer traffic data, or devices, decrypting communications, ordering a service provider to decrypt communications, ordering a service provider to assist with decryption, and seizing/attaching a computer system, as necessary. Ministerial regulations promulgated under the Computer Crimes

3.4 If licence or other authorisation fees are payable for the use of radio frequency spectrum, how are these applied and calculated?

For commercial use, spectrum is allocated by auction, with pricing determined by the auction process.

3.5 What happens to spectrum licences if there is a change of control of the licensee?

A licensee must maintain conformity with its licence conditions in order for the licence to remain valid. In this regard, a change in control could result in breach of said conditions (e.g., if the foreign shareholding ratio was breached). Generally, a licensee must notify the NBTC in writing of a change of control, and the NBTC may instruct the licensee to take particular actions as the NBTC deems appropriate.

3.6 Are spectrum licences able to be assigned, traded or sub-licensed and, if so, on what conditions?

Pursuant to the Frequency Allocation Act, a permit to use frequency waves for a telecommunications business is the exclusive right of the permit holder and is not transferable. The holder of a permit to use particular frequencies for a telecommunications business must operate the business itself. It cannot assign management of the business, in whole or in part, to someone else, or authorise other persons to operate the business on its behalf.

4 Cyber-security, Interception, Encryption and Data Retention

4.1 Describe the legal framework for cybersecurity.

The Cybersecurity Bill, which has been approved by the Cabinet but remains pending, would establish a National Cybersecurity Committee and a new state agency, the Office of the National Cybersecurity Committee. The Committee would have the responsibility to determine how to respond to serious cyber threats and to be the centre of operation in such IT calamities (save for matters of military security) and to cooperate with other state bodies and private entities for this purpose, among other related responsibilities. The Office of the National Cybersecurity Committee would be responsible for implementing the Committee’s policies, as well as related responsibilities specified in the Bill.As written, the Bill would compel state agencies to follow the Committee’s plans and policies, and it sets out mechanisms for achieving that. It also features a reporting mechanism by which state agencies and/or designated persons within each state agency would feed information back to the Secretary of the Committee, so that the Committee could determine what further actions to take in response to particular cyber threats. Further, where it is necessary for the purpose of maintaining Cybersecurity, in a circumstance where there may be an effect on financial and commercial stability or national security, it would empower the Committee to order a state agency to take particular actions and to report as the Committee may instruct.It is envisaged that the Minister would appoint officials to perform under the Act, and that they may be authorised by the Secretary of the Office to issue letters to ask questions or to request a state agency or any person to give testimony, submit a written explanation, or

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people (this is sufficiently broad to include interception of or access to data, as deemed necessary).Section 44 of the Interim Constitution and Order 3/2558 of the National Council for Peace and OrderGovernmental access can also be authorised pursuant to broad authorities existing under Order 3/2558 of the National Council for Peace and Order (“NCPO”), as well as under Section 44 of the Interim Constitution.Non-compliance under any of the foregoing can result in fines, imprisonment and/or seizure of equipment, depending on the violation.

4.3 Summarise the rules which require market participants to maintain call interception (wire-tap) capabilities. Does this cover: (i) traditional telephone calls; (ii) VoIP calls; (iii) emails; and (iv) any other forms of communications?

Telecommunications licensees are not under a general requirement to maintain or enable interception capability. Nevertheless, regulatory framework would accommodate the imposition of such technical requirements, if such a policy decision were made. Moreover, current law enables officials to order a telecommunications licensee (or any other person) to carry out or to cooperate with interception so ordered. Such order could be issued in respect of any form of communications.

4.4 How does the state intercept communications for a particular individual?

In normal circumstances, with probable cause, the state may apply to the Chief Justice of the Criminal Court for an order permitting interception of communications of any individuals, whether through wiretapping or monitoring of written and/or electronic communications. Such requirements, however, may be circumvented through special procedures under some of the laws described in our response to question 4.2 above, such as the Emergency Decree, NCPO Order 3/2558, or Section 44 of the Interim Constitution.

4.5 Describe the rules governing the use of encryption and the circumstances when encryption keys need to be provided to the state.

Encryption can be regulated under multiple laws.With respect to telecommunications applications, the Radio Communications Act provides for the regulation of activities relating to radio communication in Thailand. The Act prohibits any person from producing, possessing, using, importing, exporting or trading any radio communication equipment, unless such person is granted a licence by the NBTC. It provides authority for the NBTC to issue notifications to exempt particular types of radio communication equipment, or those used in certain activities, in either case, as a class or on an individual basis. To the extent any item constitutes radio communication equipment, if encryption capabilities exist in such devices, they would be subject to regulation as part of the device. To date, we are unaware of any denial of approval of a device on the basis of encryption functionality.With respect to military applications, the Armaments Control Act B.E. 2530 (as amended), provides for regulation of the importation, bringing in, manufacturing, and/or possession of any armament. It provides that no person shall import, bring in, manufacture, or possess armaments, except where a licence has been obtained from the Secretary of Defence,

Act set out the specific requirements that each service provider is required to meet, in terms of data retention.It is important to be aware that the Computer Crimes Act distinguishes between content data and non-content data. As a general matter, a court order is not required to access or obtain non-content data – a competent officer is already authorised to request such data from service providers or other relevant persons. While the Computer Crimes Act does not specifically use the term “intercept” when describing the authorities of the MDES with respect to these issues, such activities could be regarded as included within an officer’s authority to examine and access computer systems, computer data, computer traffic data, or devices, as referenced above. While there is no court decision to offer guidance on this point, it is our view that a competent officer’s authority extends to both stored data and those in transmission.As noted above, the Computer Crimes Act authorises a competent officer to decrypt encrypted computer data, to order concerned persons to decrypt it, and/or to order concerned persons to cooperate with a competent officer in decrypting it, for the purposes of investigating an offence under the Act. Moreover, the Computer Crimes Act purports to apply both domestically and overseas, and compliance obligations are not only applicable to certain licensees. Rather, a competent officer has the authority mentioned above to order any concerned person to decrypt data or allow access to a computer system, among other authorities under the Act.Telecommunications Business ActThe Telecommunications Business Act imposes certain obligations on telecommunications licensees. Through this regulatory framework, telecommunications licensees are obligated to comply with rules set by the NBTC. Pursuant to regulations under this Act, telecommunications licensees are obligated to retain certain data on service users, to store it according to regulations for certain periods of time, and to provide such data to the Office of the NBTC, on request, for the purpose of supervision of the telecommunications business by the NBTC and the Office of the NBTC. While there are presently no regulations explicitly requiring standing ‘back doors’ for easy government access to communications (whether in transit or stored), regulatory framework would accommodate the imposition of such a requirement.Special Investigation ActThe Special Investigation Act generally applies to alleged criminal violations of certain laws, which are unusually complex, relevant to national interests, involve influential people or certain officials, or cases otherwise selected by the Special Case Board. With respect to data interception or access, the Special Investigation Act requires Special Case Inquiry Officials to obtain a court order prior to access and acquisition of any documents or information in transmission through various means of communications which have been or may be used to commit a Special Case Offence (as defined in the Act). Under this Act, the competent officer would need to file a petition requesting the court to issue an order authorising such access or acquisition of data.Emergency Decree on Public Administration in a State of EmergencyThe Emergency Decree, inter alia, provides for expanded investigative powers usable in the event of an emergency declaration made by the Prime Minister. This Decree gives broad powers to the Prime Minister to act in virtually any way necessary to maintain public order or otherwise maintain control in emergency situations. In such event, the Prime Minister can, among other actions, authorise a competent official to issue an order to inspect any means of communication or issue a notification prohibiting any act or instructing the doing of anything necessary for maintaining the security of the state, the safety of the country or the safety of the

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market to provide for free broadcast of certain sporting events, to address competition concerns.

5.2 Is content regulation (including advertising, as well as editorial) different for content broadcast via traditional distribution platforms as opposed to content delivered over the internet or other platforms? Please describe the main differences.

The Broadcasting Business Act provides for regulation of the content of television programmes that are broadcast. Content requirements (including advertising) vary between terrestrial broadcasting and non-frequency broadcasting (e.g., cable or IPTV), as well as between different categories of channels.In addition, the Film and Video Act provides for content controls in respect of movies, commercials, television programmes, videos, certain videogames, karaoke, and other similar content. A committee constituted under that Act has the authority to censor such content, requiring changes before their release.For some years, OTT services accessible via the public internet have generally operated without regulation, given that most of the providers are abroad and given enforcement challenges in respect of foreign entities. However, there have been recent moves to bring these operators into the regulatory framework, either by asserting that they operate within the regulated space, or on the basis of a new regulatory regime specific to them. Further developments are expected very soon.It should also be noted that there have been instances of blocking websites and/or parts of websites. The Computer Crimes Act, as well as the Emergency Decree, NCPO Order 3/2558, and the Interim Constitution each provide mechanisms for such blocking.

5.3 Describe the different types of licences for the distribution of audio-visual media and their key obligations.

The Broadcasting Business Act and regulations promulgated thereunder establish framework for: (i) broadcasting network licences; (ii) broadcasting service licences; (iii) broadcasting facilities licences; and (iv) broadcasting application service licences.Broadcasting service licences are issued for broadcasts using frequencies (e.g., free-to-air) and not using frequencies (e.g., cable). For broadcasts using frequencies, there are multiple categories of licences for public and community broadcasting, but these are available only to government entities and certain associations, foundations, charities and educational institutions. With respect to commercial services, these can be licensed at the national, regional, or local levels. Non-frequency broadcasting services are licensed separately. With respect to frequency and non-frequency commercial broadcasting licences, foreign ownership in the licensee is limited to 25%.Other regulatory requirements deal with the directorship of companies holding the licences (i.e., that at least 75% of the directors be Thai nationals). Analogous ownership and control restrictions apply to licensees that exist as partnerships. Broadcasting licensees are subject to several other regulatory requirements, some of which exist in law and regulations, and others that are imposed through licence conditions.

5.4 Are licences assignable? If not, what rules apply? Are there restrictions on change of control of the licensee?

Licenses are not transferable. However, a licensee may allocate time slots for programming of others, subject to further regulatory requirements.

or where an exemption is applicable. The definition of armaments can be construed quite broadly, and even includes several routine items that happen to have military applications (dual-use). As such, to the extent that encryption technology, or equipment or software which includes encryption technology is considered an “armament”, a licence would be required to import it or otherwise bring it in to Thailand. We are, however, not aware of this law ever being used to deny the importing/bringing in or possession of routine equipment or software used for computer networking and/or telecommunications applications.Also, the Computer Crimes Act authorises officials of the MDES to access computer systems to decrypt encrypted computer data, order concerned persons to decrypt such data, and order concerned persons to cooperate with a competent official in decrypting such data for the purposes of investigating an offence relevant to the Computer Crimes Act.

4.6 What data are telecoms or internet infrastructure operators obliged to retain and for how long?

Pursuant to regulations issued under the Telecommunications Business Act, telecommunications licensees must retain certain personal data of telecommunications users, including the facts and details concerning each service user by which the service user can be identified, service usage data, telecommunications numbers, and descriptions of individual usage. Licensees must keep personal data of their service users for the last three months (counted from the day following the current day), and in the event that the service is terminated, retain such data for three months following the date of termination of the service. In the case of necessity, the service provider may be required to retain the data for longer than three months after termination of service, but not for longer than two years.The Regulations issued under the Computer Crimes Act also contain similar obligations that are applicable to service providers (as defined in that Act). Service providers include telecommunications licensees and some operators that are not telecommunications licensees. The Act requires that service providers retain necessary information on each service user, as well as specified computer traffic data; the type of computer traffic data varies by type of provider and/or service. The required computer traffic data must be stored for at least 90 days from the date the data is entered into the computer system, unless extended by a competent official. A competent official may extend this beyond 90 days, but for no more than two years, in particular cases. In addition, service providers must keep user identification data so that the service user can be identified from the beginning of use of the service, and the service provider must keep this data for at least 90 days after termination of the service.

5 Distribution of Audio-Visual Media

5.1 How is the distribution of audio-visual media regulated in your jurisdiction?

Distribution of television is handled pursuant to the Broadcasting Business Act, with the NBTC as the primary regulator. Other forms of audio-visual media, such as DVDs and computer games, are outside the scope of that Act, but other laws are relevant to them. Notably, the Film and Video Act provides regulatory framework for cinema and DVDs.The NBTC has been particularly active in exercising its authority with respect to content and competition issues. In multiple cases, the NBTC has fined operators for the broadcast of what was regarded as inappropriate content. It has also intervened in the

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Also, pursuant to the Computer Crimes Act, service providers could be held liable in respect of illegal content on their networks, unless they have acted in conformity with the ‘mere conduit’ regulation. Among the requirements of that regulation, a service provider must have a mechanism for receiving complaints/take-down notices, and for acting on them. The Computer Crimes Act also provides a mechanism by which service providers can be ordered to block/remove illegal content.

6.3 Are there any ‘net neutrality’ requirements? Are telecommunications operators and/or internet service providers able to differentially charge and/or block different types of traffic over their networks?

Regulations provide that licensees are under general obligations to operate their telecommunications network services and provide services to service users and interconnection users on a non-discriminatory basis. However, they do not go so far as to explicitly require net neutrality.

6.4 Are telecommunications operators and/or internet service providers under any obligations to block access to certain sites or content? Are consumer VPN services regulated or blocked?

Pursuant to the Computer Crimes Act, following the issuance of a court order, a competent official under the Computer Crimes Act may block particular websites or other content, or order ISPs to do so. Blocking of websites or content is also possible under the Emergency Decree, NCPO Order 3/2558 and the Interim Constitution. As for VPN services, the provider thereof would be regulated as a service provider under the Computer Crimes Act which, as noted above, requires the retention of specified user data. Access to VPN services has been blocked on occasion, but they are generally available.

A licensee must maintain conformity with its licence conditions in order for the licence to remain valid. In this regard, a change in control could result in breach of said conditions (e.g., if the foreign shareholding ratio was breached). Generally, a licensee must notify the NBTC in writing of a change of control, and the NBTC may instruct the licensee to take particular actions as the NBTC deems appropriate.

6 Internet Infrastructure

6.1 How have the courts interpreted and applied any defences (e.g. ‘mere conduit’ or ‘common carrier’) available to protect telecommunications operators and/or internet service providers from liability for content carried over their networks?

According to the Computer Crimes Act, any service provider that cooperates, agrees, or conspires in relation to a specified offence involving a computer system under its control is subject to the same penalty as that imposed upon the person committing the offence, provided that where the service provider has complied with the regulatory notification setting out the ‘mere conduit’ defence, the service provider shall not be subject to penalty. The regulatory notification setting out the ‘mere conduit’ defence is very new, and it is likely that strict compliance therewith would be necessary, in order for a service provider to avail itself of the defence.

6.2 Are telecommunications operators and/or internet service providers under any obligations (i.e. to provide information, inform customers, disconnect customers) to assist content owners whose rights may be infringed by means of file-sharing or other activities?

The Copyright Act B.E. 2537 (as amended) addresses the obligations of internet service providers in relation to infringing content and it provides a mechanism by which one can petition the court to request that infringing content be taken down.

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Tilleke & Gibbins Thailand

David DuncanTilleke & GibbinsSupalai Grand Tower, 26th Floor1011 Rama 3 RoadChongnonsi, YannawaBangkok 10120 Thailand

Tel: +66 2056 5555Email: david.d@tilleke.comURL: www.tilleke.com

David Duncan is a consultant in the Tilleke & Gibbins corporate and commercial group, specialising in technology, media, and telecommunications, antitrust/competition law, and projects. In the TMT space, which comprises the largest part of his practice, David has extensive experience in structuring and negotiating IT outsourcing transactions, developing structures by which to offer new telecommunications and/or IT services in Thailand, handling TMT-related M&A transactions, advising on IT infrastructure projects, and advising on regulatory implications of all the foregoing. He also has particular expertise in government contracting. His client base is foreign and domestic, and he advises new entrants to the market, as well as established operators. David is ranked in the TMT category by Chambers Asia-Pacific, and he has also been recognised by Chambers and other publications for projects expertise.

Tilleke & Gibbins is a leading regional law firm in Southeast Asia with over 150 lawyers and consultants practicing in Bangkok, Hanoi, Ho Chi Minh City, Jakarta, Phnom Penh, Vientiane, and Yangon. Our firm represents the top investors and the high-growth companies that drive economic expansion in Asia in the key areas of commercial transactions and M&A, dispute resolution and litigation, and intellectual property.

Our TMT practice handles all aspects of work in this field and enjoys an international reputation. Our success on our clients’ behalf has led to global recognition as a leading TMT practice by such publications as ChambersAsia-Pacific, TheLegal500AsiaPacific, Asialaw Profiles, and others.

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